Excerpt: ...rmining whether a settlement is in good faith is “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability . . . .” (Tech‐Bilt, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499.) Neither the defendants' motion nor Feldman's declaration addresses that subject. They merely state that the defendants have agreed to pay over twice the cost of connecting to the city's sewer line. Obviously, ther...

Excerpt: ...nfer in an attempt to agree upon two trial dates. Those dates shall be on Fridays and no more than six months from the TSC. Analysis: “Any district superintendent of schools . . . . may be elected for a term of no more than four years. . . . In the event the governing board of a school district determines the superintendent of schools of the district . . . is not to be reelected or reemployed as such upon the expiration of his or her term, he o...

Excerpt: ...intentional misrepresentation. However, just as with the prior pleading, it is unclear whether Gardner is relying upon affirmative misrepresentation or lack of disclosure. For instance, he alleges that upon the representations made in the governing documents. (¶¶ 158, 161, 165, 182.) However, he does not specify what those representations were or Page 4 of 5 whether they were known by the x‐defendant to be false. Therefore, to the extent that...

Excerpt: ... is rare and exists when Congress intended to displace a statebased cause of action and provided a substitute cause of action. (Winn v. California Post Acute, LLC (C.D. Cal. 2021) 532 F. Supp.3d 892, 898.) The PREP Act only applies to an inaction claim where “(1) there are limited covered countermeasures; and (2) there was a failure to administer a covered countermeasure to one individual because it was administered to another individual.” (I...

Excerpt: ... the motion decided by Judge Riemer. Because Judge Riemer had not had the benefit of the arguments presented at the hearing on the motion, the motion was set for a second hearing, to be heard on March 4. In the Court's tentative ruling for the initial hearing, Judge Daum had indicated that if the fees incurred by plaintiff for pursuing his claims against Sullivan are included in the total amount of fees sought in plaintiff's motion, then the hear...

Excerpt: ...vil Code section 1788.58(a) (3) to (8) and the contract or other document required by subdivision (b). (Civil Code section 1788.60.)” The Court ordered: “Any further application for a default judgment shall be accompanied by a declaration of counsel, describing in detail how that application differs from the most recently denied application.” The plaintiff subsequently applied for a default judgment a second time. It was not accompanied by ...

Excerpt: ...on should commit that wrongful act and intended that Iverson wrongfully obtain the funds. (CACI No. 3600.) The plaintiff has failed to do so. Indeed, in her opposition, the plaintiff never bothers to identify the elements of conspiracy to convert or to explain how those elements are satisfied by the allegations of the complaint. Negligence To maintain a cause of action for negligence, the plaintiff must show: (1) a legal duty to use due care; (2)...

Excerpt: ...ty prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” Civil Code §1717(b)(1) defines prevailing party—one who recovered a greater relief on the contract, or the court may determine there is no prevailing party. If the action has been voluntarily dismissed or dismissed pursuant to a settlement, there is no prevailing party. (...

Excerpt: ...essary for the furtherance of justice. (William H. Raley Co. v. Sup. Ct. (1983) 149 Cal.App.3d 1042, 1048.)4 However, in exercising 4 “A trial court's authority to disqualify an attorney derives from the power inherent in every court to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (People e...

Excerpt: ... the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642. “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but ...

Excerpt: ...ny matter of which the court is required to or may take judicial notice.” (Code Civ. Proc., § 430.30, subd. (a).) “As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) 2. Res judicata “The doctrine of res judicata rests upon the ground that the party to be affected...

Excerpt: ...meet and confer process, Defendant shall identify the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. Plaintiff shall provide legal support for their position that the pleading is legally sufficient or, in the alternative, how the complaint may be amended to cure any legal insufficiency. After meeting and conferring, 10 days before the continued hearing date set abo...

Excerpt: ...glect.” (Code Civ. Proc., §473(b).) “Section 473, subdivision (b) provides for two distinct types of relief. (Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 615‐616.) Under the discretionary relief provision, “on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,' the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against' a party or his or her...

Excerpt: ...of plaintiff's cause of action. In making the motion, the defendant moving for summary judgment/adjudication has the burden of persuasion that “one or more elements” of the “cause of action cannot be established” or that there is a “complete defense.” and the burden of production to make a prima facie showing of no triable issues of material fact. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Once the defendant h...

Excerpt: ...e expressly alleged, and material facts of which judicial notice has been taken. Crowley v. Katleman (1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. First Cause of Action for Intentional Misrepresentation: The necessary elements of a fraud cause of action based on intentional misrepresentation are: (1)...

Excerpt: ...nt with CMO, Section I 3(b)(ii), 8(b), and 11: • CMO, §I(3) – Any request for compensation for attorney's fees in a case that does not result in the creation of a common fund shall be supported by a lodestar analysis and supported by a lodestar analysis declaration that: o (b) Description of:  (ii) the attorney's experience and expertise that justify such a rate; whether the attorney has clients that pay that rate and the percentage of th...

Excerpt: ...actual knowledge of the action. Such knowledge does not dispense with the statutory requirements for service of summons. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.) A. Timeliness Plaintiff contends the motion is untimely. The motion to quash must be made at defendant's initial appearance in the action, on or before the last day to plead “or within any further time that the court may for good cause allow.” (CCP § 418.10(a); Marriag...

Excerpt: ...tain needed evidence. C.C.P. §437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. When a defendant has met his burden, it then shifts to plaintiff to show that a triable issue of fact exists. Betancourt's complaint contains one PAGA claim. It is based on Prudential's alleged failure to: pay overtime wages, provide uninterrupted meal and rest breaks, pay aggrieved employees all wages owed to them upon discharge or resignation, pr...

Excerpt: ...to any pleading. CCP §473 and §576, and case law establish a “policy of great liberality in Page 3 of 7 permitting amendments at any stage of the proceeding.” (Rocky Mountain Export Co. v. Colquitt (1960) 179 Cal.App.2d 204, 207.) This policy is so strong that denial of a motion for leave to amend is rarely justified. (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) The court has discretion to allow any kind of amendment, including enti...

Excerpt: ...ion nor diligence in seeking to set aside the default upon discovery of the default. I.Moving Defendant cannot establish that he is entitled to relief under Code of Civil Procedure section 473.5. Where service of summons has not resulted in actual notice to a party in time to defend the action, the party may file a motion to set aside a default or default judgment. (Code Civ. Proc., §473.5(a).) “Actual notice” for purposes of section 473.5 m...

Excerpt: ...e benefit of the arguments presented at the hearing on the motion, the motion was set for a second hearing. In the Court's tentative ruling for the initial hearing on February 8, the Court had indicated that if the fees incurred by plaintiff for pursuing his claims against Sullivan are included in the total amount of fees sought in plaintiff's motion, then the hearing would be continued and the parties would be directed to submit further briefing...

Excerpt: ...ation of Cook or the Compendium of Further Exhibits filed by the plaintiff on 2‐9‐22. Accordingly, the Court does not consider the defendant's objections to the supplemental declaration of Cook. The plaintiff's motion for attorney's fees is granted in the reduced sum of $92,979.50. The motion for prejudgment interest is granted in the sum of $4,654.38. The proposed judgment shall be signed with the following modifications: In paragraphs 4, 5,...

Excerpt: ...ese motions to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it early. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The burden is comparable to that of a party seeking a new trial on the ground of newly discovered evidence, i.e. the information must be such that the moving party could not with reasonable diligence have discovered or produced it...

Excerpt: ... v. Santa Maria Public Airport Dist. (1995) 39 Cal. App. 4th 1017, 1028.) The requirement of “new” or “different” facts or law is jurisdictional. (C.C.P. §1008(e); Baldwin v. Home Savings of America (1998) 59 Cal.App.4th 1192.) Furthermore, the motion must be brought within 10 days of the service of the notice of entry of the order. (C.C.P. §1008(a).) “To merit reconsideration, a party must give a satisfactory reason why it was unable...

Excerpt: ... Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. Tri‐City Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) The complaint must be construed liberally… with a view to substantial justice between the parties.” (CCP § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If the complaint fails to state a cause of action, the court...